Statutory Families

It’s not very long ago that the Supreme Court issued an opinion about social security eligibility for kids conceived after the death of the genetic father.    I wrote about it here.   If you look back that what you’ll see is that in that case an administrative agency (it was social security) had rules about when a person was a “child.”   The Court held that the rules were good enough–not the only imaginable set of rules, but one possible set of rules.

One thing that can make you slightly crazy is that there are many different definitions of family law terms that are in use in our law.   They are not always consistent.  Thus, the definition of “child” in social security (which is actually an incorporation of a state law standard) is not the same as the definition of child for all other purposes.

Now as I say, this can make you slightly crazy, but there’s actually a good reason for the variation.   The words used–“parent,” “child,” “family,” or whatever–are there for a purpose.  They define a class of people eligible for (or perhaps not eligible for) a particular federal benefit or program.   And since different federal benefits and programs are around for different reasons, they may need to use different definitions.

This will be more clear if I give an example and you can probably tell I’m working up to one here.   I’m thinking about the Family and Medical Leave Act (FMLA)  and who it protects.

Now the FMLA, as you may know, is the federal statute that mandates unpaid time off for a limited group of employees (basically you have to work for a big enough company) for qualified medical and family reasons.  Seen in global perspective, it is a pretty pathetic set of benefits (I think most other countries provide better protections than the FMLA does) but it is what we have.

The idea is that you get unpaid time off (but you get to go back to your job, at least) to take care of a family member under certain circumstances.   Clearly we need a definition of family members.

The definition is provided by the US Department of Labor and you can read a bit about it here.    The material I’ve linked to addresses a specific problem:  The statute refers to a “son or daughter.”   Given that language, who gets to take time off to care for a child?   It’s up to the agency to determine the meaning of the words and give them more specific content.

It seems pretty clear that given the purpose of the FMLA a “son or daughter” has to include an adopted child.   It also probably ought to include a child conceived via ART with or without third-party gametes.   What you want to focus on isn’t the genetics, it’s who is caring for the child–who needs to bond, etc.   As the DOL document says:

Congress intended the definition of “son or daughter” to reflect“the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.  Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.” 

The problem isn’t the cases I mentioned before–ART or adoption–but, as the document says, what about instances where a person is caring for a child but there is no (formal) legal or biological parent/child relationship?

The DOL uses the concept of in loco parentis to draw the line.   I’ll include a lengthy quote here so that you can get a flavor of what this means.

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.  It embodies the two ideas of assuming the parental status and discharging the parental duties.”  Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted).  Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.”  Black’s Law Dictionary 803 (8th ed. 2004).  “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child.  The intent to assume such parental status can be inferred from the acts of the parties.” Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original).

And it makes clear that you can have two legal parents and someone else who is in loco parentis and therefore is entitled to the protections of the FMLA.

There’s a way in which this little exercise flies in the face of what I’ve spent so much time thinking about on this blog–the big questions like “who is a parent?”   It suggests that we have to answer these questions one by one, depending on the context.  The DOL definition here may not be right for social security or other purposes, but it is the right answer for this situation.

I figured it was worth a bit of thought.



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